Div 3Infringement notices

Division 3—Infringement notices S. 26ZA inserted by No. 93/2001 s. 37. 26ZA Definition In this Division, ***authorised officer*** means— S. 26ZA(a) amended by No. 21/2012 s. 239(Sch. 6 item 41.6). (a) an inspector under the **Australian Consumer Law and Fair Trading Act 2012**; S. 26ZA(b) amended by No. 37/2014 s. 10(Sch. item 150.4). (b) a police officer; (c) a person authorised in writing by the Director. S. 26ZB inserted by No. 93/2001 s. 37, amended by No. 32/2006 s. 94(Sch. item 44(1)) (ILA s. 39B(1)). 26ZB Power to serve a notice S. 26ZB(1) amended by No. 3/2019 s. 27. (1) An authorised officer may serve an infringement notice on any person that he or she has reason to believe has committed an offence against section 20(1), 20(2), 21(1), 21A, 23(2), 23(3), 23A(3) or 24B or an offence specified by the regulations as an offence in respect of which an infringement notice may be issued. S. 26ZB(2) inserted by No. 32/2006 s. 94(Sch. item 44(1)). (2) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the **Infringements Act 2006**. S. 26ZC inserted by No. 93/2001 s. 37, substituted by No. 32/2006 s. 94(Sch. item 44(2)). 26ZC Form of notice For the purposes of section 26ZB, an infringement notice must be in the form required by the **Infringements Act 2006** and may contain any additional information approved by the Director. Ss 26ZD, 26ZE inserted by No. 93/2001 s. 37, repealed by No. 32/2006 s. 94(Sch. item 44(3)). S. 26ZF inserted by No. 93/2001 s. 37. 26ZF Further proceedings concerning infringement notices S. 26ZF(1)–(4) repealed by No. 32/2006 s. 94(Sch. item 44(4)(a)). S. 26ZF(5) amended by No. 32/2006 s. 94(Sch. item 44(4)(b)). (5) Nothing in Division 5 of Part 2 of the **Infringements Act 2006** prevents the Tribunal from conducting an inquiry under section 18A and taking disciplinary action under section 18B against a person for any act or omission for which an infringement notice was issued. Pt 5 Div. 4 (Heading and ss 26ZG–26ZS) inserted by No. 45/2017 s. 25. Division 4—Enforcement—second‑hand dealers S. 26ZG inserted by No. 45/2017 s. 25. 26ZG Search warrants (1) A police officer may apply to a magistrate for the issue of a search warrant in relation to particular premises for the purpose of monitoring compliance with this Act or the regulations in relation to second-hand dealers. (2) If a magistrate is satisfied by the evidence, on oath or by affirmation or by affidavit, of the police officer that the warrant is necessary for the purpose of monitoring compliance with this Act or the regulations in relation to second-hand dealers, the magistrate may issue a search warrant, in accordance with the **Magistrates' Court Act 1989**, authorising a police officer named in the warrant, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment— (a) to enter the premises specified in the warrant, if necessary by force; and (b) to do all or any of the following— (i) search for; (ii) seize; (iii) secure against interference; (iv) examine and inspect; (v) make copies of or take extracts from— a thing or things of a particular kind named or described in the warrant and which the police officer believes, on reasonable grounds, to be connected with a contravention of this Act or the regulations in relation to second-hand dealers. (3) A search warrant issued under this section must state— (a) the purpose for which the search is required; and (b) any conditions to which the warrant is subject; and (c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and (d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect. (4) Except as provided by this Act, the rules to be observed with respect to search warrants under the **Magistrates' Court Act 1989** extend and apply to warrants under this section. S. 26ZH inserted by No. 45/2017 s. 25. 26ZH Announcement before entry (1) On executing a search warrant, the police officer executing the warrant— (a) must announce that the police officer is authorised by the warrant to enter the premises; and (b) if the police officer has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises. (2) A police officer need not comply with subsection (1) if the police officer believes on reasonable grounds that immediate entry to the premises is required to ensure— (a) the safety of any person; or (b) that the effective execution of the search warrant is not frustrated. S. 26ZI inserted by No. 45/2017 s. 25. 26ZI Details of warrant to be given to occupier (1) If the occupier is present at premises where a search warrant is being executed, the police officer must— (a) identify the police officer to the occupier; and (b) give to the occupier a copy of the warrant. (2) If the occupier is not present at premises where a search warrant is being executed, the police officer must— (a) identify the police officer to a person (if any) at the premises; and (b) give to the person a copy of the warrant. S. 26ZJ inserted by No. 45/2017 s. 25. 26ZJ Seizure of things not mentioned in the warrant A search warrant under section 26ZG authorises a police officer executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize or take a sample of any thing which is not of the kind described in the warrant if— (a) the police officer believes, on reasonable grounds, that the thing is of a kind which could have been included in a search warrant issued under this Division; and (b) in the case of seizure, the police officer believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act. S. 26ZK inserted by No. 45/2017 s. 25. 26ZK Embargo notice (1) A police officer executing a search warrant under section 26ZG who is authorised by that warrant to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed, issue an embargo notice in the prescribed form— (a) by causing a copy of the notice to be served on the occupier; or (b) if the occupier cannot be located after all reasonable steps have been taken to do so, by affixing a copy of the notice to the thing in a prominent position. (2) A person who knows that an embargo notice relates to a thing and who— (a) sells; or (b) leases; or (c) without the written consent of the police officer who issued the embargo notice, moves; or (d) transfers; or (e) otherwise deals with— the thing or any part of the thing is guilty of an offence and liable to a penalty not exceeding 50 penalty units. (3) It is a defence to a prosecution for an offence against subsection (2) to prove that the accused moved the thing or the part of the thing for the purpose of protecting and preserving it. (4) Despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of this section is void. S. 26ZL inserted by No. 45/2017 s. 25. 26ZL Copies of seized documents (1) If a police officer retains possession of a document taken or seized from a person under this Division, the police officer must give the person, within 21 days of the seizure, a copy of the document certified as correct by the police officer. (2) A copy of a document certified under subsection (1) shall be received in all courts and tribunals to be evidence of equal validity to the original. S. 26ZM inserted by No. 45/2017 s. 25. 26ZM Retention and return of seized documents or things (1) If a police officer seizes a document or other thing under this Division, the police officer must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists. (2) If the document or thing seized has not been returned within 3 months after it was seized, the police officer must take reasonable steps to return it unless— (a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or (b) the Magistrates' Court makes an order under section 26ZN extending the period during which the document or thing may be retained. S. 26ZN inserted by No. 45/2017 s. 25. 26ZN Magistrates' Court may extend 3 month period (1) A police officer may apply to the Magistrates' Court— (a) within 3 months after seizing a document or other thing under this Division; or (b) if an extension has been granted under this section, before the end of the period of the extension— for an extension not exceeding 3 months of the period for which the police officer may retain the document or thing but so that the total period of retention does not exceed 12 months. (2) The Magistrates' Court may order such an extension if it is satisfied that the total period of retention does not exceed 12 months and retention of the document or other thing is necessary— (a) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or (b) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act. (3) The Magistrates' Court may adjourn an application to enable notice of the application to be given to any person. S. 26ZO inserted by No. 45/2017 s. 25. 26ZO Requirement to assist police officer during entry To the extent that it is reasonably necessary to determine compliance with this Act or the regulations, a police officer exercising a power of entry under this Division pursuant to a search warrant under section 26ZG who produces identification for inspection by the occupier of the premises or an agent or employee of the occupier may require that person— (a) to give information to the police officer, orally or in writing; and (b) to produce documents to the police officer; and (c) to give reasonable assistance to the police officer. S. 26ZP inserted by No. 45/2017 s. 25. 26ZP Refusal or failure to comply with requirement A person must not refuse or fail, without reasonable excuse, to comply with a requirement of a police officer under this Division. Penalty: 50 penalty units. S. 26ZQ inserted by No. 45/2017 s. 25. 26ZQ Rule against self-incrimination does not apply (1) A person is not excused from answering a question or producing a document under this Division on the ground that the answer or document might tend to incriminate the person. (2) If the person claims, before answering a question, that the answer might tend to incriminate the person, the answer is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer. S. 26ZR inserted by No. 45/2017 s. 25. 26ZR Offence to give false or misleading information A person must not— (a) give information to a police officer under this Division that the person believes to be false or misleading in any material particular; or (b) produce a document to a police officer under this Division that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information. Penalty: 50 penalty units. S. 26ZS inserted by No. 45/2017 s. 25. 26ZS Service of documents (1) A written requirement by a police officer under this Division may be given personally or by registered post to a person— (a) at the last known place of business, employment or residence of the person; or (b) in the case of a body corporate, at the registered office of the body corporate. (2) A person who provides a document or information in response to a requirement of a police officer under this Division may send that document or information to the police officer by registered post. Pt 5 Div. 5 (Heading and ss 26ZT–26ZX) inserted by No. 3/2019 s. 24. Division 5—Interim closure notices and long-term closure orders S. 26ZT inserted by No. 3/2019 s. 24. 26ZT Interim closure notice (1) The Chief Commissioner of Police may issue a notice that specified premises be closed in respect of any person carrying on business as a second-hand dealer at the premises if the Commissioner— (a) is satisfied on reasonable grounds that— (i) a person is carrying on business as a second-hand dealer at the premises; and (ii) the person is not a registered second-hand dealer; and (iii) the person is not exempt from the requirement to be registered under this Act or the regulations; or (b) reasonably suspects that a serious criminal offence is being committed at the specified premises that are also the business premises or storage premises of— (i) a registered second-hand dealer; or (ii) a person exempt from the requirement to be registered under this Act or the regulations. (2) An interim closure notice— (a) must specify the premises, or the part of the premises, that are the subject of the notice; and (b) prohibits a person at the specified premises— (i) carrying on business as a second‑hand dealer; and (ii) altering the form of any second‑hand goods or disposing of any second-hand goods at the premises in any way for the period of the notice; and (c) must be served personally on the occupier of the premises in accordance with section 391 of the **Criminal Procedure Act 2009** and a copy of the notice must be posted in a conspicuous place at the entrance to the premises; and (d) takes effect from the time it is served on the occupier; and (e) has effect for a period not exceeding 72 hours, unless it is sooner cancelled by the Chief Commissioner of Police. (3) The Chief Commissioner of Police must not issue— (a) more than one interim closure notice for the same premises in any 7-day period; or (b) under subsection (1)(b), more than 3 interim closure notices in relation to a course of conduct that constitutes a serious criminal offence. S. 26ZU inserted by No. 3/2019 s. 24. 26ZU Magistrates' Court may make long-term closure order (1) The Chief Commissioner of Police may apply to the Magistrates' Court for an order that the premises specified in the application be closed in respect of any person carrying on business as a second-hand dealer at the premises. (2) An application under subsection (1) must be made in accordance with the rules of court (if any)*.* (3) The Chief Commissioner of Police must serve a copy of an application made under subsection (1) on the occupier of the premises specified in the application as soon as practicable after the application has been made. (4) The Magistrates' Court may make a long‑term closure order closing the specified premises, or a part of those premises, in respect of any person carrying on business as a second-hand dealer if the Court is satisfied that— (a) a person is carrying on business as a second-hand dealer at the premises and the person— (i) is not a registered second-hand dealer; and (ii) is not exempt from the requirement to be registered under this Act or the regulations; or (b) there has been, or there is likely to be, a serious criminal offence committed at or in connection with the specified premises that are also the business premises or storage premises of— (i) a registered second-hand dealer; or (ii) a person exempt from the requirement to be registered under this Act or the regulations. (5) The Magistrates' Court must— (a) determine the period for which the order is to be in force, as appropriate in the circumstances; and (b) specify this period in the order. (6) If an order is made under subsection (4) and the person who is carrying on business as a second-hand dealer at the premises did not appear in the proceeding, the Chief Commissioner of Police must— (a) serve the order— (i) personally on the person in accordance with section 391 of the **Criminal Procedure Act 2009**; or (ii) if personal service of the order cannot be promptly effected, by substituted service in accordance with section 397 of the **Criminal Procedure Act 2009**; and (b) post a copy of the order in a conspicuous place at the entrance to the premises. (7) An application may be made under this section regardless of whether an interim closure notice has been issued with respect to the specified premises. (8) If an interim closure notice is in force with respect to the specified premises on an application being made under this section, the Magistrates' Court may cancel the notice if the Court considers that— (a) the notice should not have been issued; or (b) there are no longer sufficient grounds for the notice to continue in force. (9) If the Magistrates' Court makes the order and an interim closure notice is in force with respect to the premises, the interim closure notice ceases to have effect. S. 26ZV inserted by No. 3/2019 s. 24. 26ZV Cancellation of long-term closure order (1) A person may apply to the Magistrates' Court for the cancellation of a long-term closure order made in respect of premises occupied by the person. (2) An application under subsection (1) must be made in accordance with the rules of court (if any). (3) The person must serve a copy of an application made under subsection (1) on the Chief Commissioner of Police as soon as practicable after the application has been made. (4) On an application under subsection (1), the Magistrates' Court may cancel the order if the court is satisfied— (a) that the circumstances of the second‑hand dealer have materially altered since the order was made and as a result the order is no longer appropriate; or (b) that the basis for making the order no longer exists. **Note** A person who becomes the owner of premises that are subject to a long-term closure order may make an application under this section. S. 26ZW inserted by No. 3/2019 s. 24. 26ZW Failure to comply with an interim closure notice or long-term closure order (1) A person must not knowingly or recklessly, while an interim closure notice or long-term closure order is in force, fail to comply with that notice or order. (2) A person does not commit an offence against subsection (1) if— (a) the person presents or points to evidence that suggests that the person did not know, and could not reasonably have been expected to know, that an interim closure notice or long‑term closure order was in force with respect to the premises specified in the notice or order; and (b) the contrary is not proved (beyond reasonable doubt) by the prosecution. S. 26ZX inserted by No. 3/2019 s. 24. 26ZX No compensation—closure of premises (1) No compensation is payable by the State in respect of anything done under or arising out of the making of an interim closure notice or long‑term closure order. (2) In this section— ***compensation*** includes damages and any other form of monetary compensation.